R v Mark William Helmhout & Anor

Supreme Court of NSW|2000-03-10|Before: Bell J, Mr J

CITATION : R v Mark William Helmhout & Anor [2000] NSWSC 218 FILE NUMBER(S) : SC 70205/99; 70206/99 HEARING DATE(S) : 09/03/00, 10/03/00 JUDGMENT DATE : 10 March 2000

Regina v Deborah Joy Davidson PARTIES : Regina v Mark William Helmhout JUDGMENT OF : Bell J

C: Mr R D Cogswell SC COUNSEL : DD: Mr J S Stratton MH: Mr G Corr C: D Knott, Director of Public Prosecutions SOLICITORS : DD: Brenda Duchen MH: J R Jeffery, South Eastern Aboriginal Legal Service CATCHWORDS : CRIMINAL LAW - Application to Discharge Jury - prejudice - evidence tending to disclose past criminality LEGISLATION CITED : Crimes Act 1900, Part 10A Crimes (Detention after Arrest) Regulation 1998, cl.28 R v Knape [ 1965] VR 469 R v Waring (No.2) [1972] QdR 263 The Queen v Koppen (1975) 11 SASR 182 CASES CITED : Maric v R (1978) 20 ALR 513 R v Weaver [1968] 1 QB 353 The Queen v Glennon (1992) 173 CLR 592 Crofts v The Queen (1996) 186 CLR 427 Australian Criminal Trial Directions DECISION : Declined

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

10 March 2000 70205/99 - REGINA v DEBORAH JOY DAVIDSON 70206/99 - REGINA v MARK WILLIAM HELMHOUT

1 HER HONOUR: On Thursday 9 March 2000, Mr Corr who appears on behalf of the accused, Mark William Helmhout, made application for me to discharge the jury following the admission of some evidence from Sergeant Dagwell tending to disclose that the accused had, on a previous occasion, been arrested and detained in police custody. 2 The evidence was given late in the day. At the conclusion of Sergeant Dagwell's examination in chief, Mr Corr made his application. He submitted that the disclosure of material of this nature carried such potential for prejudice that the proper exercise of my discretion required the discharge of the jury. He referred me to the authorities collected on this point in Australian Criminal Trial Directions, Glissan and Tilmouth, Butterworths at para 4-800-15-10. 3 I stood the matter over to 9.30am the following day to enable further consideration of the application. On Friday, 10 March 2000, Mr Corr took me to a number of authorities; R v Knape [1965] VR 469 at 473; R v Waring (No. 2) [1972] Qd.R 263 at 270-271; The Queen v Koppen (1975) 11 SASR 182 at 185; Maric v R (1978) 20 ALR 513 at 519-520. Before turning to a consideration of the authorities, it is appropriate to set out the circumstances in which the matter arose. 4 Sergeant John Warren Dagwell was the custody manager at the Queanbeyan Police Station on 20 June 1998 when the accused was brought into custody pursuant to the provisions of Part 10A of the Crimes Act, 1900. Among the issues in this trial are (i) the extent of the accused's intoxication by alcohol and/or other drugs at the time he participated in an ERISP on the morning of 20 June 1998, (ii) whether prior to participating in that interview he had been threatened by the detectives in charge of the investigation and (iii) the failure of Sergeant Dagwell to comply with the requirements of cl 28 of the Crimes (Detention after Arrest) Regulation 1998. In the light of these issues, the Crown Prosecutor led evidence from Sergeant Dagwell (without objection) as to the questions asked of the accused and the answers received in the course of completing the custody manager's protocol. The protocol requires the custody manager to inquire as to the detainee's state of intoxication. The detainee is also asked if he or she is an Aboriginal or Torres Strait Islander. This latter consideration is relevant to the cl 28 issue. The questions to be asked of detainees are brought up on the computer screen as the custody manager completes the protocol. Provision is made for either an affirmative or negative answer to be recorded by typing "Y" or "N". In the course of his evidence, Sergeant Dagwell was shown a bundle of computer generated documents being the Part 10A protocol relating to the accused. He was invited to recount his questions, and the accused's responses, by reference to those documents. Both the Crown Prosecutor and Mr Corr had copies of a set of computer generated documents (being the Part 10A protocols relating to the accused), however, it appears that neither had the complete set. Sergeant Dagwell's bundle, MFI 16, included the following question: "Q: Is this the first time you have been arrested and placed in police custody?"

The accused's reply to this question was recorded by the letter "N" signifying that he had asserted it was not. Sergeant Dagwell gave this evidence (T.558/9). 5 It was unfortunate that this evidence was led. However, no question arises of any impropriety or sharp practice on the part of the Crown Prosecutor or Sergeant Dagwell. Sergeant Dagwell was invited to read the questions and answers recorded on MFI 16 and he did so. I think, in those circumstances, it would be unfair to expect that he should have edited out the offending question and answer. There is nothing to suggest that Sergeant Dagwell knew that neither the Crown Prosecutor nor Mr Corr had access to the document from which he was reading. It is quite clear that both the Crown Prosecutor and Mr Corr were not aware that the offending question and answer formed part of MFI 16. 6 I approach this matter upon the basis that there has been a wholly inadvertent disclosure of the fact that the accused had been arrested and held in police custody on an occasion prior to 20 June 1998. 7 Mr Corr relied on a passage in the decision of the Full Court in Knape in which it was said (at p 473): "An examination of the authorities leads us to the view that unless it can be said, upon the evidence, that the irregular disclosure could not in any way affect the judgment of the jury in coming to their decision of guilty or not guilty, the trial judge should exercise his discretion in favour of the accused."

I should note that on this test (which I do not accept accurately reflects the current state of the law) I would not consider that the proper exercise of my discretion favoured a discharge. 8 The passage cited above in Knape needs to be read in the light of more recent authorities. Gibbs J (as he then was) in Maric referred with approval to the observations of Sachs LJ who delivered the judgment of the Court in Regina v Weaver [1968] 1 QB 353: "It is very far from being the rule that in every case where something of this nature gets into evidence through inadvertence the jury must be discharged." (at p 360) 9 In Crofts v The Queen (1996) 186 CLR 427 at 440, Toohey, Gaudron, Gummow and Kirby JJ observed: "No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact." 10 This mishap occurred towards the close of the ninth day of the trial when the Crown case was drawing to a close. The evidence emerged as the result of a misunderstanding. No question of deliberateness, in the context in which their Honours referred to it in Crofts, arises. When Sergeant Dagwell gave the evidence neither the Crown Prosecutor nor Mr Corr betrayed any obvious reaction to it. Mr Corr waited for a suitable interval before making his application. In this way, no added impact was given to the evidence at the time it emerged. 11 Evidence has been led (without objection) that, at the time of the accused's arrest, the police located some marijuana and cannabis resin in his unit. In an electronically recorded interview with police the accused readily volunteered that he had been smoking marijuana the previous day. Mr Corr elicited from the witness, Julieann House, that she had supplied the accused with some heroin a matter of hours before the killing. The issue of the accused's intoxication (both alcohol and drug induced) is a live one in this case. It is for this reason, as I apprehend it, that no objection was taken to the evidence of the accused's possession of marijuana and cannabis resin. Against this background, I consider the accidental disclosure (that on a prior occasion the accused had been arrested) is not likely to occasion prejudice such that the continuation of the trial would be unfair. 12 The evidence goes no higher than that the accused had been arrested on an occasion prior to 20 June 1998. There is no evidence that he has been convicted of anything. 13 I consider that in the course of my summing up I can effectively deal with this evidence (instructing the jury to put it out of their minds) at the same time as I direct them to put out of their minds the evidence concerning the accused's possession of cannabis resin and cannabis leaf save in so far as they find it relevant to the question of his ingestion of cannabis on the day preceding the subject events. 14 In The Queen v Glennon (1992) 173 CLR 592, Mason CJ and Toohey J said (at p 603): "The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J observed in Hinch v Attorney-General for State of Victoria (1987) 164 CLR 15 at 74, in the past, too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them ." 15 In the course of the evidence of Detective McCloskey, Mr Corr objected to the contents of a conversation between the Detective and the accused relating to the drugs located at the premises being given. That objection was upheld and I directed the jury that it was self-evident the accused in this case was charged with murder and that the fact that he may or may not have been spoken to about the possession of cannabis was of no concern and should be put out of their minds. As I gave this short direction, a number of the jurors nodded affirmatively. 16 I consider I should proceed upon the basis that this jury will, in conformity with the direction I propose giving them, put out of their consideration their knowledge that, on an occasion prior to 20 June 1998, the accused had been arrested. 17 I did not consider that it was appropriate for me to give a direction to the jury concerning this evidence at the time when it was given by Sergeant Dagwell. To do so would have risked giving the evidence prominence which, in my view, it had not otherwise acquired. I raised this matter with both the Crown Prosecutor and Mr Corr. Neither invited me to give a direction at this stage in the trial. 18 For the above reasons, I declined the application to discharge the jury. **********

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